Ignoring the talking heads on television and the salacious headlines, the decision by the Pennsylvania Supreme Court distills to a few fundamental principles. But let us start with the tortured factual recitation. In 2005, the Montgomery County District Attorney Bruce Castor, investigating the 2004 sexual assault of Andrea Constand, determined that a criminal trial likely could not be won. Many of us would disagree with that assessment. Certainly, lack of timely disclosure, the effects of drugs on memory, etc. are indeed grist for the cross-examination mill, but they do not negate the possibility of a conviction. But moving on, according to the evidence, Castor contemplated an alternative course of action that “could place Constand on a path to some form of justice.” Deciding that a civil lawsuit for money damages was her best option, “as the sovereign,” the DA decided that his office would not prosecute Cosby. He reasoned that, by removing the threat of a criminal prosecution, Cosby would no longer be able to invoke his Fifth Amendment privilege against self-incrimination in a civil lawsuit.

In connection with his decision, Castor issued two press releases, the second one signed in 2005 at the request of Constand’s attorneys in order to bind the commonwealth so it “would be evidence that they could show to a civil judge that Cosby is not getting prosecuted.” The press release stated, “After reviewing the above and consulting with County and Cheltenham Detectives, the District Attorney finds insufficient, credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt.”

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